Sprunk v. North Dakota Workers Compensation Bureau

• Court: North Dakota Supreme Court
• Writing for the Court: MARING
• Citation: Sprunk v. North Dakota Workers Compensation Bureau, 576 N.W.2d 861 (N.D. 1998)
• Decision Date: 28 April 1998
• Docket Number: No. 970296,970296
• Parties: Barbara SPRUNK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and N.D. Grain Inspection Svc., Inc., Respondent. Civil

Page 861

576 N.W.2d 861

1998 ND 93

Barbara SPRUNK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and N.D. Grain Inspection Svc., Inc., Respondent.

Civil No. 970296.

Supreme Court of North Dakota.

April 28, 1998.

Mark G. Schneider, of Schneider, Schneider & Schneider, Fargo, for claimant and appellant.

Jacqueline Sue Anderson, Special Assistant Attorney General, Nilles, Hansen & Davies, Fargo, for appellee.

MARING, Justice.

¶1 Barbara Sprunk appealed a judgment affirming the Workers Compensation Bureau's denial of permanent partial impairment benefits. We affirm.

I

¶2 Sprunk injured her head, neck, back, and left knee in a fall while working on December 19, 1995. Sprunk filed a claim for benefits. The Bureau accepted liability and awarded benefits. On August 12, 1996, the Bureau issued an order denying a permanent partial impairment (PPI) award because Sprunk had not reached maximum medical improvement (MMI).

¶3 Sprunk requested reconsideration. The Bureau appointed an administrative law judge (ALJ) to conduct a hearing. The parties agreed to submit the matter to the ALJ on briefs and exhibits presented by the parties, without a formal evidentiary hearing. The ALJ found, among other things: "The greater weight of the evidence indicates that Claimant has not yet reached maximum medical improvement." On December 24, 1996, the ALJ recommended affirmance of the Bureau's August 12, 1996, order denying PPI benefits. The Bureau adopted the ALJ's recommended order as the Bureau's final order. Sprunk appealed to the district court. The district court affirmed the Bureau's order and Sprunk appealed to this court.

II

¶4 On appeal, we review the Bureau's decision, not the district court's decision. Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, p 8, 575 N.W.2d 436. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm an administrative agency decision unless the findings of fact are not supported by a preponderance of the evidence, the conclusions of law are not supported by the findings of fact, the decision is not supported by the conclusions of law, the decision is not in accordance with the law or violates the appellant's constitutional rights, or the agency's rules or procedures deprived the appellant of a fair hearing. Flink v. North Dakota Workers Comp. Bureau, 1998 ND 11, p 8, 574 N.W.2d 784. "Our review of an administrative agency's findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record." Feist v. North Dakota Workers Comp. Bureau, 1997 ND 177, p 8, 569 N.W.2d 1.

¶5 Sprunk contends we must construe workers compensation statutes liberally in favor of injured workers, as we have in the past. See, e.g., Feist, 1997 N.D. 177, p 8, 569 N.W.2d 1. In 1995, the following language was added to N.D.C.C. § 65-01-01: "A civil action or civil claim arising under this title, which is subject to judicial review, must be reviewed solely on the merits of the action or claim. This title may not be construed liberally on behalf of any party to the action or claim." 1995 N.D. Laws, Ch. 605, § 1. Relying on N.D.C.C. § 1-02-01, ¹ Sprunk contends we must continue to construe workers compensation statutes liberally. However, under N.D.C.C. § 1-02-07, ² a special provision like N.D.C.C. § 65-01-01 will ordinarily prevail in a conflict with a general provision like N.D.C.C. § 1-02-01. Furthermore, whether or not we construe a workers compensation statute liberally, under N.D.C.C. § 65-01-11, "a claimant has the burden of proving he or she is entitled to participate in the workers compensation fund." Feist, 1997 ND 177, p 8, 569 N.W.2d 1.

III

¶6 The Bureau moved to strike three documents from the appendix filed by Sprunk: a November 20, 1996, report by John H. Beaumier, M.D.; a December 3, 1996, letter from the Bureau to Dr. Beaumier; and Dr. Beaumier's December 13, 1996, response to the Bureau's letter. The documents were contained in the Bureau's claim file, but were not presented to the ALJ. The Bureau did not include the documents in the certificate of record it filed with the district court under N.D.C.C. § 28-32-17. Sprunk presented the documents to the district court in an addendum to the record. The district court found the addendum "contains evidence that was not considered by the Bureau or by [ALJ] Thomas. As a result, it will not be considered on appeal." Sprunk included the three documents in the appendix she filed in her appeal to this court. The Bureau contends Sprunk violated Rule 30(a), N.D.R.App.P., which provides, in part: "Only items actually in the record may be included in the appendix."

¶7 "When there has been an appeal from a decision of an administrative agency, NDCC 28-32-17(2) requires the administrative agency to 'prepare and file ... the original or a certified copy of the entire record of proceedings before the agency, or an abstract of the record as may be agreed upon and stipulated by the parties.' " Sowatzki v. North Dakota Workers Comp. Bureau, 1997 ND 137, p 15, 567 N.W.2d 189. Unless otherwise provided by statute, "the agency record constitutes the exclusive basis for administrative agency action and judicial review of an administrative agency action." N.D.C.C. § 28-32-17(5). Under N.D.C.C. § 28-32-19, the district court "must review an appeal from the determination of an administrative agency based only on the record filed with the court."

¶8 When the Bureau filed its certificate of record on appeal with the district court, N.D.C.C. § 28-32-17(4) specified the contents of an agency record:

The agency record of the proceedings, as applicable, must consist of only the following:

a. The complaint, answer, and other initial pleadings or documents.

b. Notices of all proceedings.

c. Any prehearing notices, transcripts, documents, or orders.

d. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings.

e. A statement of matters officially noticed.

f. Offers of proof and objections and rulings thereon.

g. Proposed findings, requested orders, and exceptions.

h. The transcript of the hearing prepared for the person presiding at the hearing, including all testimony taken, and any written statements, exhibits, reports memoranda, documents, or other information or evidence considered before final disposition of proceedings.

i. Any recommended or proposed order, recommended or proposed findings of fact and conclusions of law, final order, final findings of fact and conclusions of law, or findings of fact and conclusions of law or orders on reconsideration.

j. Any information considered pursuant to section 28-32-07.

k. Matters placed on the record after an ex parte communication.

The Bureau argues the documents included by Sprunk were not considered by the Bureau or the ALJ and they are, therefore, not part of the record on appeal. Sprunk argues the documents were in the Bureau's file and were part of the record of proceedings.

¶9 The Bureau's view that the challenged documents were not part of the record because the Bureau and the ALJ did not consider them is too broad:

[T]he "record of proceedings before the agency" consists of a wide range of documents, and, contrary to the Department's argument, is not limited to documents presented as a result of a formal hearing. Rather, the "agency record of proceedings" may include information not presented at a formal hearing. N.D.C.C. §§ 28-32-17(4)(j); 28-32-07.

Bashus v. North Dakota Dep't of Human Svcs., 519 N.W.2d 296, 298 (N.D.1994). Sprunk's view that the challenged documents were part of the record because they were in the Bureau's claim file is also too broad because Sprunk failed to properly present them to the district court. N.D.C.C. § 28-32-18 provides a method for getting additional evidence into the record on appeal in the district court:

If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken, heard, and considered by the agency on terms and conditions as the court may deem proper. After considering the additional evidence, the administrative agency may amend or reject its findings of fact, conclusions of law, and order, and shall file with the court a transcript of the additional evidence together with its new or amended findings of fact, conclusions of law, and order, if any, which constitute a part of the record with the court.

Sprunk did not attempt to augment the record by using the procedure provided by N.D.C.C. § 28-32-18. We, therefore, conclude the challenged documents are "not part of the record on appeal," Otto v. North Dakota Workers Comp. Bureau, 533 N.W.2d 703, 705 (N.D.1995), and we will not consider them.

IV

¶10 Sprunk was treated by L.J. Knauf, D.C. On July 9, 1996, Dr. Knauf opined that Sprunk reached MMI on or about May 15, 1996. Since then, other doctors opined that Sprunk had not reached MMI. Sprunk contends Dr. Knauf's opinion is controlling, as a matter of law, under either N.D.C.C. § 65-05-12 ³ or § 65-05-12.2. ⁴ The claimant in Nemec v. North Dakota Workers Comp. Bureau, 543 N.W.2d 233 (N.D.1996), made a similar argument based on N.D.C.C. § 65-05-08.1(1), which provided: "The claimant's doctor shall certify the period of temporary total disability upon request of the bureau." Nemec argued that statute "require[d] the Bureau to accept the treating doctor's opinion on disability" or "to...